IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 Criminal Bail Applications No. S-460 & 476 of 2021

 

            Applicants                :           Sikandar Raza s/o Raees Abbas Shah, 

                                                            in Crl. Bail Application No. S-460 of 2021,

                                                           through Mr. Syed Ali Aamir Shah, advocate

 

                                                            Tahir Ali s/o Muhammad Hasan Phulpoto, 

                                                            in Crl. Bail Application No. S-476 of 2021,

                                                        through Mr. Ghulam Mujtaba Jakhar, advocate

                                               

            Respondent               :          The State, through

                                                            Mr. Shafi Muhammad Mahar, D.P.G.

 

            Complainant            :           Niaz Ali s/o Turab Ali Jagirani, through  

                                                            Mr. Shamsuddin Larak, advocate  

                                                            -------------

            Date of hearing       :           06.09.2021

            Date of order           :          06.09.2021

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ORDER

 

ZAFAR AHMED RAJPUT, J:-   By this common order, I intend to dispose of above listed both the bail applications, whereby the applicants above-named seek pre-arrest bail in Crime/FIR No. 85 of 2021, registered under sections 302, 148 and 149, P.P.C., at P.S B-Section, Khairpur. Their earlier applications for grant of pre-arrest bail bearing Nos. 1815 and 1489 of 2021, respectively, were dismissed by the learned Addl. Sessions Judge,-1 (MCTC) Khairpur, vide common order dated 26.07.2021. The applicants were admitted to interim bail by this Court vide orders dated 29.07.2021and 02.08.2021, respectively, now the bail applications are fixed for confirmation or otherwise.  

 

2.         Precise allegations against the applicants, as per the FIR, are that on 30.03.2021 at 01:00 a.m. they along three un-identified co-accused, duly armed with pistols, formed an unlawful assembly and in prosecution of common object of such an unlawful assembly applicant Sikandar Raza and an un-identified co-accused caught hold Mujahid Hussain, the nephew of complainant Niaz Ali, and applicant Tahir Ali fired on his head and thereby caused his death, for which applicants, along with three other co-accused, were booked in the FIR.

3.         The learned counsel for the applicants have mainly contended that the applicants are innocent and have falsely been implicated in this case; that there is inordinate delay of three days in lodging of FIR, which shows that the FIR has been lodged with consultation and deliberation; that no allegation of causing fire arm injury has been leveled against the applicant Sikandar Raza; that during the course of investigation, the I.O collected evidence and found the applicants innocent; as such, they were released by the I.O under section 497 (2) Cr.P.C after obtaining sureties and submitted such report before the concerned Judicial magistrate for disposal of the case under “A” Class of the Police Rules, as some un-known persons commited the murder of the deceased; that there appears no reasonable ground to believe that the applicants has commited the alleged offence; hence, it is a fit case for further enquiry under section 497(2) Cr.P.C. for the grant of bail to applicants.

 

4.         On the other hand, learned counsel for the complainant and learned DPG have vehemently opposed these applications on the ground that the applicants in in prosecution of common object have committed murder of an innocent person and they are nominated in the FIR by name; that the delay in FIR has been explained in the FIR; that the summary submitted by the I.O for disposal of the case under “A” Class was not recommended by the Distract Public Prosecutor, Khairpur being on the basis of statements of defense witnesses and plea of alibi; that the medical report affirms the fact that deceased died due to firearm injury; that there are two eye-witnesses who have fully implicated the applicants in their statements recorded under section 161, Cr.P.C.; hence, sufficient evidence is available with the prosecution to connect the applicants with the commission of alleged offence punishable for death; therefore, they are not entitled for the bail.

 

5.         I have considered the arguments advanced by the learned counsel for the applicants, learned DPG and perused the material available on record.

6.          It appears that the applicants are nominated in the FIR with specific role that having entered into the house of the deceased; applicant Sikandar Raza caught hold the arm of the deceased by sharing common object and applicant Tahir Ali made straight fire from his pistol on his head, who fell down and died at the spot. There are three eye-witnesses, including the complainant, who have fully connected the applicants with commission of alleged offence. The ocular account is fully supported with medical evidence. The alleged offence falls within the prohibitory clause of section 497, Cr. P.C. So far delay in lodging FIR is concerned, it has been stated in the FIR that after informing police, the complainant party took the dead body of the deceased to police station from where to hospital and after postmortem and burying the dead body complainant lodged the FIR. Even otherwise, delay in FIR is not ipso facto a ground for the grant of bail.   

 

7.         So far the ground raised by the learned counsel for the applicants with regard to submission of summary for cancellation of the case under “A” Class of Police Rules is concerned, it appears that during the course of investigation, first I.O/SIP Lashkar Khan Kandhro recorded the statements of P.Ws, namely, Kazim Ali and Ahmed Khan, who fully supported the version of the FIR and implicated both the applicants. Then inspector Abdul Razzaq arrested both the applicants and obtained their remand. On 20.04.2021, investigation of the case was transferred to inspector Anwer Ali Abro, who recorded the statements of defense witnesses and declared the applicants innocent on the basis of statements of D.W. and plea of alibi, and finally recommended the case for disposal under untraceable “A” Class. The DPP, Khairpur vide his scrutiny memo, dated 04.05.2021, did not approved the summary/report by observing that sufficient material is available against the applicant/accused and three unknown person for committing alleged offence. From the tentative assessment of the evidence in hands of prosecution, I am of the view that prima-facie sufficient evidence is available against the applicant to connect them with the commission of alleged offence, carrying punishment for death and imprisonment for life. Suffice to say, the veracity of plea of alibi would be determined at trial. Every hypothetical question which could be imagined would not make it a case of further enquiry simply for the reason that it could be answered by the trial Court subsequently after evaluation of evidence.

 

8.         Besides, the learned counsel for applicants have not been able to point out any special feature of the case entitling applicants to grant of extra-ordinary concession of pre-arrest bail. Pre-requisites for such concession i.e. malice and ulterior motive, either on the part of complainant or the police are conspicuously missing in the case. Accordingly, these applications are dismissed. The interim bail granted to applicants, vide orders dated 29.07.2021and 02.08.2021, stands recalled.

 

                                                                                                                        JUDGE